COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. AS/13758/2004]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE RICHARDS
| AI (Nigeria)
|- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr D Pievsky (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
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Lord Justice Dyson:
"While the 1999 Constitutions [sic] provides for equality of men and women, the reality of women in Nigerian includes discrimination both on a legal as well as on a social level. The lives of women are defined almost exclusively by their role as wife and mother and they are subjected to a series of traditional norms which are extremely hard to counteract. Single women are considered to be sexually available, even in big cities such as Lagos. The dependency of women on the social network of support and protection is therefore even more pronounced than for Nigerian men. Personal status law can be based on civil law, Sharia law or customary law, quite often leading to conflicting legal outcomes in the case of inheritance or divorce. Harmful traditional practices such as female genital mutilation (FGM), early marriages and humiliating treatment and widows can be encountered in many parts of Nigeria despite recently introduced legal provisions banning such practices on state level."
"… that the appellant, as a woman without support, with no husband and a small child, would be at significant risk of persecution and ill-treatment in Nigeria."
She was at risk of persecution because of her status as a lone woman rather than because of her religion. The adjudicator bore in mind the majority opinions of the House of Lords in Shah and Islam  2 AC 629. He said:
"Even if the Government is able to provide a measure of protection against religious violence, there is evidence that protection for vulnerable women is inadequate. In my judgment the appellant has a well-founded fear of persecution because of her identity as a Nigerian woman."
1) there was no discriminatory legislation against women in the Nigerian constitution;
2) the objective evidence relied on by the adjudicator spoke of discrimination not persecution;
3) the persecution claimed emanated from non-state agents and the adjudicator had failed to consider either sufficiency of protection or internal relocation.
The Secretary of State also appealed on the ground that the adjudicator's categorisation of Nigerian women as a social group ignored the "cautionary remarks" made in Shah and Islam and was an error of law.
"Our assessment of the objective evidence quoted by the Adjudicator and from the Country Report provisions that we have set out above does not indicate the kind of discrimination which can properly be described or characterised as institutionalised. Clearly there are elements of discrimination against women in Nigeria but there are many positive aspects also, as can be seen from the above quotations. We consider that the situation markedly contrasts with that described by the House of Lords in Shah and Islam. We do not consider that the Adjudicator was entitled to find as he did that the appellant is a member of a particular social group. We do not consider that the levels of discrimination that we have identified from the evidence before the Adjudicator concerning the situation for women in Nigeria in any sense are such as can properly be said to amount to persecution and that is relevant both to the question of definition of particular social group and the kind of risk that the appellant might face on return. We do not consider that we are simply expressing disagreement with the Adjudicator. We do not consider, contrary to Mr Lewis' submission that the findings he came to were open to him on the evidence before him. We consider that he was entitled to find no more than [that] there exists a level of discrimination against women in Nigeria but the evidence does not show that a single woman returning with a small child and with no family in Nigeria faces a risk of anything more than discrimination to a certain extent as regards aspects of Nigerian society. We agree with Mr Lewis that the issue of relocation does not need to arise in the circumstances and we do not consider this is an appropriate case for consideration at stage two. We have the Adjudicator's findings before us and the objective evidence considered by him, and we have concluded that this is a case where determination can properly be characterised as being perverse as being one to which a reasonable Adjudicator could not come to on the evidence before him. We therefore substitute for the Adjudicator's decision our decision dismissing the appeal both under the Refugee Convention and under the Human Rights Convention."
"To get a job, it was necessary to sleep with people."
She refers also to the report dated 2004 by Amnesty International which includes the following:
"Violence against women remained widespread and persistent. Gender-based violence reported in 2004 included sexual violence, violence in the family, female genital mutilation and forced marriage. Discriminatory legislation remained in place."
She refers to passages in the Red Cross report which were not quoted by the adjudicator including a passage which states:
"It is extremely difficult to make a living in Nigeria without the support of the extended family or another social network."
Finally she refers to the CIPU report which in turn quotes from the US State Department report that states that abuses are common, "especially wife beating", and that:
"Rape and sexual harassment continue to be problems. Prostitution is rampant, particularly in urban areas."
Miss Webber submits that this evidence was ignored by the AIT in reaching its conclusion that the evidence disclosed no more than that the appellant would face a risk of discrimination. She says that the AIT's finding of perversity overlooked the careful approach of the adjudicator and appeared to require that all women be at risk of persecution as a precondition of finding that the particular appellant be at such risk. It also appeared to overlook the evidence of likely exposure to sexual violence and degradation which the adjudicator found important in reaching his conclusion of a risk of persecution. She submits further that the authorities demonstrate that all that is required to define a particular social group is that the group is united by a common immutable characteristic and/or is recognised as having a distinct identity in the relevant country; see Lord Bingham of Cornhill in Fornah v Secretary of State for the Home Department  UKHL 46,  3 WLR 733, paragraphs 11 to 16.
"The evidence relating to her home village and her father's marriage to someone who was not freeborn is not part of her claim for asylum. It relates to her reasons for being unable to relocate to her home village."
1) they failed to address the evidence as to the vulnerability of single women to sexual predation;
2) they misdirected themselves in law on the membership of a particular social group; and
3) they failed to address Article 3 of the European Convention on Human Rights.
Lord Justice Richards:
Lord Justice Mummery:
Order: Appeal dismissed.